When should a document be disclosed during an investigation?

Posted on November 24th, 2022

In University of Dundee v Mr Prasun Chakraborty, the employment appeal tribunal (EAT) considered whether an earlier version of a grievance investigation report was disclosable during tribunal proceedings.

Mr Chakraborty started employment with the university on 28 January 2013 as a post-doctoral research assistant.

Grievance raised

On 10 November 2021, he sent an email to representatives of the university in which he raised a grievance against his line manager, under the university’s Dignity at Work and Study policy.

The grievance included allegations of harassment and bullying, discrimination and racial abuse. It also contained a suggestion that his line manager had made a false accusation of fraud against him.

Grievance investigated

The university appointed an independent member of the academic staff, Professor Nic Daeid of the university’s School of Science and Engineering, to investigate the grievance and produce a report. As part of her investigation, she carried out interviews with witnesses and gathered relevant documents.

Before the report was completed, Mr Chakraborty presented a claim to the employment tribunal (ET) on 21 December 2021.

Original report amended

Professor Daeid completed her report on 28 February 2022 and sent it to the university’s external legal advisors to review. A number of changes were suggested by the legal advisors. In addition, Professor Daeid also made some changes of her own before the final version of the report was lodged with the ET shortly before an evidential hearing on Mr Chakraborty’s complaints.

Application for original report

Mr Chakraborty made an application for a document order for production of the original un-amended version of the report. The university refused, claiming that comparison of the original with the amended version could show the nature of the legal advice received such that the original version of the document was subject to legal advice privilege. The judge rejected the argument and made the order.

University appealed

The university appealed, contending that, although the original version of the document was not privileged at the point when it was created, it retrospectively acquired legal advice and litigation privilege once the amended version of it was lodged because comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice received by the university.

EAT findings

The EAT considered the fact that the university’s counsel conceded that the report dated 28 February 2022 was not protected at the point when it was created. However, the university claimed that the document retrospectively acquired privileged status, as a result of advice having been given about it.

The EAT disagreed, stating that this proposition is unsupported by authority and is incorrect.

The EAT also noted that they found it difficult to understand how it can be said that it would be possible to infer what legal advice was given simply from a comparison of the 28 February 2022 document with the version ultimately lodged by the university, particularly given Professor Nic Daeid had made her own amendments.

Summary and advice

This case is a reminder that the contents of grievance reports may be disclosable in tribunal proceedings. A report drafted in order to receive legal advice may be protected by legal privilege, but if a report has been circulated internally before advice is sought, it will probably be too late to withhold it from disclosure on the grounds of privilege.

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